EEA4 for dual national by birth

[khan.789]

Hi everyone,
I am sorry if this topic was been discussed before, as I tried my best to find answer of my questions not successful so far.

I have to explain background first to explain properly.
I am eea2 residence, just had it because I applied prior to amendments in June 2012.
My wife is british and eu national by birth, she was born in UK after she was taken to denmark and lived there until she was 7 years old. In roughly between 2000 and 2003 she moved to UK and stayed hear studying with her family, she never had danish passport until we decided to get married and apply my visa under eu laws, we got married in 2011 now my PR time is end of this year.
What I think is best is, if I reounce her british and apply her eea3 to make my eea4 simple. it's because if she has eea3 we don't need to provide 5 years history.
. I think she secured her PR since 2008 as she was in UK as student also she don't need to show evidence of CSI because she was student before June 2011, kindly shed some lights from your experience as I don't want to mess it up. If you don't understand anything please kindly ask it without hesitation. Thanks in advance. help will be highly appreciated.
Regards,
Khan

[noajthan]

Hi everyone,
I am sorry if this topic was been discussed before, as I tried my best to find answer of my questions not successful so far.

I have to explain background first to explain properly.
I am eea2 residence, just had it because I applied prior to amendments in June 2012.
My wife is british and eu national by birth, she was born in UK after she was taken to denmark and lived there until she was 7 years old. In roughly between 2000 and 2003 she moved to UK and stayed hear studying with her family, she never had danish passport until we decided to get married and apply my visa under eu laws, we got married in 2011 now my PR time is end of this year.
What I think is best is, if I reounce her british and apply her eea3 to make my eea4 simple. it's because if she has eea3 we don't need to provide 5 years history.
. I think she secured her PR since 2008 as she was in UK as student also she don't need to show evidence of CSI because she was student before June 2011, kindly shed some lights from your experience as I don't want to mess it up. If you don't understand anything please kindly ask it without hesitation. Thanks in advance. help will be highly appreciated.
Regards,
Khan

You say your wife is British so she will have settled status by virtue of being British.
As she is British she doesn't need CSI.

Regarding the transitional arrangement for CSI for students;
EEA nationals who are/were students would only have exemption from CSI if they had held a RC issued to them (as a student) in/before 2011.

If you had a RC issued in/before 2012 you can avail of the McCarthy transitional arrangement.
So there is no need for your sponsor to renounce her citizenship, that would be bizarre.
(Does she even want to do that?!)
In any case that renunciation won't be back dated.

[khan.789]

You say your wife is British so she will have settled status by virtue of being British.
As she is British she doesn't need CSI.

Regarding the transitional arrangement for CSI for students;
EEA nationals who are/were students would only have exemption from CSI if they had held a RC issued to them (as a student) in/before 2011.

If you had a RC issued in/before 2012 you can avail of the McCarthy transitional arrangement.
So there is no need for your sponsor to renounce her citizenship, that would be bizarre.
(Does she even want to do that?!)
In any case that renunciation won't be back dated.

Thanks for the reply. Thanks for the very clear answer about CSI issue. My wife doesn't have issue about giving up british nationality, as long as I am sorted.
How McCarthy transitional arrangements would apply in my case?
There is a little hurdle basically, she stopped working in august 2012, but she was studying at the time, we didn't know she needs CSI I was issued eea2 on 8 november 2012 and bought CSI for her from 01 november 2012. So it's 2 months gap of CSI from August to november which is worrying me, I had solicitor at the time she even didn't mention about CSI I found it my self.
From April 2013 till now she is working. Any advise please? How being British can exempt her keeping CSI as student?
Also if possible please clarify about student is she only has to be enrolled in course, I meant she doesn't have to be full time student? If you know what I mean. Thanks in deed.

[noajthan]

You say your wife is British so she will have settled status by virtue of being British.
As she is British she doesn't need CSI.

Regarding the transitional arrangement for CSI for students;
EEA nationals who are/were students would only have exemption from CSI if they had held a RC issued to them (as a student) in/before 2011.

If you had a RC issued in/before 2012 you can avail of the McCarthy transitional arrangement.
So there is no need for your sponsor to renounce her citizenship, that would be bizarre.
(Does she even want to do that?!)
In any case that renunciation won't be back dated.

Thanks for the reply. Thanks for the very clear answer about CSI issue. My wife doesn't have issue about giving up british nationality, as long as I am sorted.
How McCarthy transitional arrangements would apply in my case?
There is a little hurdle basically, she stopped working in august 2012, but she was studying at the time, we didn't know she needs CSI I was issued eea2 on 8 november 2012 and bought CSI for her from 01 november 2012. So it's 2 months gap of CSI from August to november which is worrying me, I had solicitor at the time she even didn't mention about CSI I found it my self.
From April 2013 till now she is working. Any advise please? How being British can exempt her keeping CSI as student?
Also if possible please clarify about student is she only has to be enrolled in course, I meant she doesn't have to be full time student? If you know what I mean. Thanks in deed.

Giving up BC won't help you in the past.
It would mean your spouse/sponsor will be able to sponsor you for 5 more years in the future to acquire PR sometime in perhaps 2021/22.

Any previous gaps (such a lack of CSI when a student) can stop the PR clock running.
CSI is form of insurance so cannot be backdated to remedy that.

Being British doesn't specifically exempt wife from CSI. She just wouldn't need CSI.
It doesn't matter because, being British, she doesn't need to acquire PR.

It just means the PR clock would have stopped for you as the dependent family member.

What was wife studying?
At what level?
And where/how long for?

Its not enough just to be enrolled and they can't just go to some dodgy night school.
The person has to be a student at a recognised educational establishment in order to be classed as a qualified person who is exercising treaty rights.

See HO guidance on this vital question for students:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- ref page 25+

It seems wife may not have been exercising treaty rights continuously in earlier years.
If she started working in 2013 her PR clock may run until 2018 for you.
(That is assuming she can rely on the McCarthy transitional arrangement such that she can still be considered an EEA national whilst in UK).

[khan.789]

Any previous gaps (such a lack of CSI when a student) can stop the PR clock running.
CSI is form of insurance so cannot be backdated to remedy that.

No, Just 2 months from gap.

Being British doesn't specifically exempt wife from CSI. She just wouldn't need CSI.
It doesn't matter because, being British, she doesn't need to acquire PR.

True.

It just means the PR clock would have stopped for you as the dependent family member.

Just because of 2 months gap its not fair? we applied eea2 when she was working, but then she had to leave job after 2 months while my application was under process. we did update home office with her student status with no CSI, and when 4 months passed during my application we come to know about CSI and we bought it straightaway, 1 week later after we bought CSI I was issued with RC. I had solicitor at the time would she not be liable for any mess, because I paid her for application?
. When home office made decision for my eea2 my wife was a student with not confirmation of CSI, this is weird because they should have rejected my application on that point?

What was wife studying?
some health and social course

At what level?
i think level 2 or 3

And where/how long for?
it was one of the government funded college(can't be challenged). she completed her course. about a year, in between she started working but we still kept CSI.

Please explain below?
It seems wife may not have been exercising treaty rights continuously in earlier years.
If she started working in 2013 her PR clock may run until 2018 for you.
(That is assuming she can rely on the McCarthy transitional arrangement such that she can still be considered an EEA national whilst in UK).[/quote]

. I just wanted to add this as well, I have valid RC until the clock ends which is till end of 2017, is it better to wait till end of 2017?
Thanks in deed.

[noajthan]

Any previous gaps (such a lack of CSI when a student) can stop the PR clock running.
CSI is form of insurance so cannot be backdated to remedy that.

No, Just 2 months from gap.

Being British doesn't specifically exempt wife from CSI. She just wouldn't need CSI.
It doesn't matter because, being British, she doesn't need to acquire PR.

True.

It just means the PR clock would have stopped for you as the dependent family member.

Just because of 2 months gap its not fair? we applied eea2 when she was working, but then she had to leave job after 2 months while my application was under process. we did update home office with her student status with no CSI, and when 4 months passed during my application we come to know about CSI and we bought it straightaway, 1 week later after we bought CSI I was issued with RC. I had solicitor at the time would she not be liable for any mess, because I paid her for application?
. When home office made decision for my eea2 my wife was a student with not confirmation of CSI, this is weird because they should have rejected my application on that point?

What was wife studying?

some health and social course

At what level?

i think level 2 or 3

And where/how long for?

it was one of the government funded college(can't be challenged). she completed her course. about a year, in between she started working but we still kept CSI.

Please explain below?

It seems wife may not have been exercising treaty rights continuously in earlier years.
If she started working in 2013 her PR clock may run until 2018 for you.
(That is assuming she can rely on the McCarthy transitional arrangement such that she can still be considered an EEA national whilst in UK)

.

. I just wanted to add this as well, I have valid RC until the clock ends which is till end of 2017, is it better to wait till end of 2017?
Thanks in deed.

I don't know how you were advised before.
Even if you think your representative fell short of the mark, no case you may file against them (nor any compensation if you got any) will reinstate any treaty rights that you may have failed to observe.

It's not negotiable, if a sponsor is not exercising treaty rights then the PR clock stops.

If your wife was unemployed for a period of 2 months then she needs evidence of being a jobseeker;
(for example, registered with Job Centre, applying for work, going to job interviews & etc).

It's not clear when your wife was in college but presumably you got CSI because you thought you needed it.
If you can find any exemption then perhaps it wasn't needed; your timeline & the precise status of the college your sponsor attended are not clear.
The college needs to be on one of the official HO lists/databases of approved educational establishments for it to be accepted.

A RC is not a 'visa'.
Even though you have one with an expiry sometime in the future it can still become become invalid;
for example, if the sponsor stops exercising treaty rights, or one of you leaves UK for over 6 months or you get divorced.

You will always need to submit good evidence of treaty rights being exercised by your sponsor, continuously, for 5 years.

You need to review the activity and timeline of your sponsor, and the supporting evidence you have, to see if it all stacks up.
Whether it is from the period 2012 - 2017 or from 2013 - 2018 or whenever.
(That is assuming UK is still in EU in 2017/18).

[secret.simon]

It's not negotiable, if a sponsor is not exercising treaty rights then the PR clock stops.

The concept of discretion exists in the UK Immigration Rules, which are tougher on the whole.

But in EU law, you must tick all the boxes that are there (no discretion). Conversely, once you tick all the boxes, you must be given the appropriate card/permit (no discretion to refuse either).

So, in EU law, there is no benefit of the doubt. You get either 100% or 0%, nothing in between.

[khan.789]

I don't know how you were advised before.
Even if you think your representative fell short of the mark, no case you may file against them (nor any compensation if you got any) will reinstate any treaty rights that you may have failed to observe.

It's not negotiable, if a sponsor is not exercising treaty rights then the PR clock stops.

If your wife was unemployed for a period of 2 months then she needs evidence of being a jobseeker;
(for example, registered with Job Centre, applying for work, going to job interviews & etc).

It's not clear when your wife was in college but presumably you got CSI because you thought you needed it.
If you can find any exemption then perhaps it wasn't needed; your timeline & the precise status of the college your sponsor attended are not clear.
The college needs to be on one of the official HO lists/databases of approved educational establishments for it to be accepted.

A RC is not a 'visa'.
Even though you have one with an expiry sometime in the future it can still become become invalid;
for example, if the sponsor stops exercising treaty rights, or one of you leaves UK for over 6 months or you get divorced.

You will always need to submit good evidence of treaty rights being exercised by your sponsor, continuously, for 5 years.

You need to review the activity and timeline of your sponsor, and the supporting evidence you have, to see if it all stacks up.
Whether it is from the period 2012 - 2017 or from 2013 - 2018 or whenever.
(That is assuming UK is still in EU in 2017/18).

I never sue my representative.
she was studying one of the highly trusted institution, Uxbridge College. dates are as followed. if they don't make sense please ask.

Rc time lines:

got married in oct 2011.
Rc rejected in may 2012.
repplied in june 2012.
Rc issued in nov 2012.
Rc received dec 2012

Wife treaty rights:

started work in april 2011.
stopped work in aug 2012.
started studying aug 2012 until june 2013.
CSI from nov 2012 until nov 2013.
started work from march 2013 until now no gaps.

She never been to job sekeers. She did apply for jobs in 2 months gap maybe couple of jobs.
my RC is valid until end of 2017. From november 2012 until today my wife has no gaps with out exercising treaty rights, I was thinking is it safe to wait till end of 2017 and then apply PR as I will have my wife's prove of exercising treaty rights with no gaps. Thank you so much indeed for replies, I am so thank full.
Regs,
Khan

[noajthan]

...

I never sue my representative.
she was studying one of the highly trusted institution, Uxbridge College. dates are as followed. if they don't make sense please ask.

Rc time lines:

got married in oct 2011.
Rc rejected in may 2012.
repplied in june 2012.
Rc issued in nov 2012.
Rc received dec 2012

Wife treaty rights:

started work in april 2011.
stopped work in aug 2012.
started studying aug 2012 until june 2013.
CSI from nov 2012 until nov 2013.
started work from march 2013 until now no gaps.

She never been to job sekeers. She did apply for jobs in 2 months gap maybe couple of jobs.
my RC is valid until end of 2017. From november 2012 until today my wife has no gaps with out exercising treaty rights, I was thinking is it safe to wait till end of 2017 and then apply PR as I will have my wife's prove of exercising treaty rights with no gaps. Thank you so much indeed for replies, I am so thank full.
Regs,
Khan

It's critical to look at the ta for McCarthy to determine if your dual national wife can be considered as an EEA national who is able to sponsor you at all.

Transitional Arrangements
8. In order not to unfairly prejudice the position of persons who have acted in reliance on the previous definition of EEA national, transitional provisions have been made. Without transitional arrangements, such persons could be left entering or residing in the UK without any valid basis to remain and unable to switch into the Immigration Rules. These transitional arrangements are set out in paragraph 2 of Schedule 3 of the Immigration (European Economic Area) (Amendment) Regulations 2012.

9. Transitional arrangements have therefore been introduced to enable continued reliance on the previous definition of EEA national. These provisions apply where a person:
a) Has a right to permanent residence in the UK in reliance on the previous definition on the 16 July 2012 OR
b) Has a right to reside in the UK on 16 July 2012 AND on 16 October 2012 either:
i. Holds a valid registration certificate or residence card issued under the 2006 Regulations, or
ii. Has made an application under the 2006 Regulations for a registration certificate or residence card which has not yet been determined
iii. Has made an application under the 2006 Regulations for a registration certificate or residence card which has been refused and in relation to which an appeal under regulation 26 could be brought whilst the appellant is in the UK or is pending; OR
(c)Has, prior to 16 July 2012, applied for an EEA family permit as the family member of an EEA national; OR
(d) Has prior to 16 July 2012 applied for and been refused an EEA family permit provided that an appeal against that decision under regulation 26 could be brought or is pending.

10. These transitional arrangements apply until:
a) The six month validity period to enter the UK in reliance on a family permit has expired and the family member has not entered the UK.
b) Any appeal can no longer be brought
c) Any appeal is dismissed, withdrawn or abandoned
d) The person ceases to be the family member of the EEA national
e) Any right of permanent residence is lost as a result of absence from the UK

11. In practice this means that once a right is lost, appeal rights against a claimed right are exhausted or a family permit is not used, reliance can no longer be placed by that person on the previous definition of EEA national. Further detail on these events is provided in Annex A Right to Permanent Residence

12. A person who qualifies under these transitional arrangements and who had not acquired permanent residence on or before 16 July 2012 may do so under regulation 15 of the 2006 Regulations provided that they meet the requirements for permanent residence under regulation 15 at the relevant future date.

13. A person who qualified under the transitional arrangements cannot, however, acquire a right to permanent residence as a person who has retained the right of residence in the UK. This is because they only benefit from the transitional arrangements so long as they are the family member of the relevant EEA national. At such time as the relationship breaks down, for example following divorce, they will no longer meet that definition.

14. Unless an applicant falls within the scope of the transitional provisions, an application received after 16 October 2012 must be processed in accordance with the new definition of EEA national even if the applicant has been residing in the UK in reliance on the previous definition. Applicants should be advised that unless they meet the criteria for reliance on the transitional provisions there is no legal basis on which they can continue to rely on the previous definition of EEA national.

Whether by luck or by judgement it seems that para 9 b) ii) of the ta applies - if you are sure the RC application was submitted in June 2012.
So it appears your wife can be your EEA national sponsor as per para 12.

Your PR clock looks like it started in Nov 2012 when you put the CSI in place.
(You can't invoke the ta for students in/before 2011).

If all goes well PR could/should be acquired by 2017 - for you.
(Your wife as a Brit doesn't need it).